National Standards To Prevent, Detect, and Respond to Prison Rape, 6248-6302 [2011-1905]

Agencies

• Department of Justice

[Federal Register Volume 76, Number 23 (Thursday, February 3, 2011)]
[Proposed Rules]
[Pages 6248-6302]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1905]



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Vol. 76

Thursday,

No. 23

February 3, 2011

Part III





Department of Justice





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28 CFR Part 115



National Standards To Prevent, Detect, and Respond to Prison Rape; 
Proposed Rule

Federal Register / Vol. 76, No. 23 / Thursday, February 3, 2011 / 
Proposed Rules

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DEPARTMENT OF JUSTICE

28 CFR Part 115

[Docket No. OAG-131; AG Order No. 3244-2011]
RIN 1105-AB34


National Standards To Prevent, Detect, and Respond to Prison Rape

AGENCY: Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) has under review 
national standards for combating sexual abuse in confinement settings 
that were prepared by the National Prison Rape Elimination Commission 
(Commission) pursuant to the Prison Rape Elimination Act of 2003 (PREA) 
and recommended by the Commission to the Attorney General. On March 10, 
2010, the Department published an Advance Notice of Proposed Rulemaking 
(ANPRM) to solicit public input on the Commission's proposed national 
standards and to receive information useful to the Department in 
publishing a final rule adopting national standards for the detection, 
prevention, reduction, and punishment of prison rape, as mandated by 
PREA. The Department is now publishing this Notice of Proposed 
Rulemaking to propose such national standards for comment and to 
respond to the public comments received on the ANPRM.

DATES: Written comments must be postmarked on or before April 4, 2011, 
and electronic comments must be sent on or before midnight Eastern time 
April 4, 2011.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. OAG-131'' on all written and electronic correspondence. 
Written comments being sent via regular or express mail should be sent 
to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department 
of Justice, 950 Pennsylvania Avenue, NW., Room 4252, Washington, DC 
20530. Comments may also be sent electronically through https://www.regulations.gov using the electronic comment form provided on that 
site. An electronic copy of this document is also available at the 
https://www.regulations.gov Web site. The Department will accept 
attachments to electronic comments in Microsoft Word, WordPerfect, 
Adobe PDF, or Excel file formats only. The Department will not accept 
any file formats other than those specifically listed here.
    Please note that the Department is requesting that electronic 
comments be submitted before midnight Eastern Time on the day the 
comment period closes because https://www.regulations.gov terminates the 
public's ability to submit comments at midnight Eastern Time on the day 
the comment period closes. Commenters in time zones other than Eastern 
Time may want to consider this so that their electronic comments are 
received. All comments sent via regular or express mail will be 
considered timely if postmarked on the day the comment period closes.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, 
NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This 
is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at https://www.regulations.gov and in the Department's public docket. Such 
information includes personal identifying information (such as your 
name, address, etc.) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you still want to 
submit personal identifying information (such as your name, address, 
etc.) as part of your comment, but do not want it to be posted online 
or made available in the public docket, you must include the phrase 
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your 
comment. You must also place all the personal identifying information 
you do not want posted online or made available in the public docket in 
the first paragraph of your comment and identify what information you 
want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personal identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, will be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.

II. Background

    The Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. 15601 et 
seq., requires the Attorney General to promulgate regulations that 
adopt national standards for the detection, prevention, reduction, and 
punishment of prison rape. PREA established the National Prison Rape 
Elimination Commission (Commission) to carry out a comprehensive legal 
and factual study of the penological, physical, mental, medical, 
social, and economic impacts of prison rape in the United States, and 
to recommend national standards to the Attorney General and to the 
Secretary of Health and Human Services. The Commission released its 
recommended national standards in a report dated June 23, 2009, and 
subsequently disbanded, pursuant to the statute. The Commission's 
report and recommended national standards are available at https://www.ncjrs.gov/pdffiles1/226680.pdf.
    The Commission set forth four sets of recommended national 
standards for eliminating prison rape and other forms of sexual abuse. 
Each set is applicable to one of the following four confinement 
settings: (1) Adult prisons and jails; (2) juvenile facilities; (3) 
community corrections facilities; and (4) lockups (i.e., temporary 
holding facilities). The Commission recommended that its standards 
apply to Federal, State, and local correctional and detention 
facilities (excluding facilities operated by the Department of Defense 
and the Bureau of Indian Affairs). In addition to the standards 
themselves, the Commission prepared assessment checklists, designed as 
tools to provide agencies and facilities with examples of how to meet 
the standards' requirements; glossaries of key terms; and discussion 
sections providing explanations for the rationale of the standards and, 
in some cases, guidance for achieving compliance. These are available 
at https://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons and jails), 
https://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile facilities), https://www.ncjrs.gov/pdffiles1/226683.pdf (community corrections), and https://www.ncjrs.gov/pdffiles1/226685.pdf (lockups).

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    Pursuant to PREA, the final rule adopting national standards 
``shall be based upon the independent judgment of the Attorney General, 
after giving due consideration to the recommended national standards 
provided by the Commission * * * and being informed by such data, 
opinions, and proposals that the Attorney General determines to be 
appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly 
mandates that the Department shall not establish a national standard 
``that would impose substantial additional costs compared to the costs 
presently expended by Federal, State, and local prison authorities.'' 
42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of 
improvements for consideration by correctional facilities.'' 42 U.S.C. 
15607(a)(3).
    The Attorney General established a PREA Working Group, chaired by 
the Office of the Deputy Attorney General, to review each of the 
Commission's proposed standards and to help him prepare a draft final 
rule. The Working Group includes representatives from a wide range of 
Department components, including the Access to Justice Initiative, the 
Bureau of Prisons (including the National Institute of Corrections), 
the Civil Rights Division, the Executive Office for United States 
Attorneys, the Office of Legal Policy, the Office of Legislative 
Affairs, the Office of Justice Programs (including the Bureau of 
Justice Assistance, the Bureau of Justice Statistics (BJS), the 
National Institute of Justice, the Office of Juvenile Justice and 
Delinquency Prevention, and the Office for Victims of Crime), the 
Office on Violence Against Women, and the United States Marshals 
Service.
    The Working Group conducted an in-depth review of the standards 
proposed by the Commission. As part of that process, the Working Group 
conducted a number of listening sessions in January and February 2010, 
at which a wide variety of individuals and groups provided preliminary 
input prior to the start of the regulatory process. Participants 
included representatives of State and local prisons and jails, juvenile 
facilities, community corrections programs, lockups, State and local 
sexual abuse associations and service providers, national advocacy 
groups, survivors of prison rape, and members of the Commission. The 
Department also consulted with the Department of Homeland Security's 
Office for Civil Rights and Civil Liberties and with U.S. Immigration 
and Customs Enforcement (ICE).
    Because PREA prohibits the Department from establishing a national 
standard that would impose substantial additional costs compared to the 
costs presently expended by Federal, State, and local prison 
authorities, the Working Group carefully examined the potential cost 
implications of the standards proposed by the Commission. As part of 
that process, the Department commissioned an independent contractor to 
perform a cost analysis of the Commission's proposed standards, which 
was received on June 18, 2010.
    The Department has also worked to address those recommendations put 
forth by the Commission that require action outside of the context of 
PREA to accomplish. For example, the Department is in the process of 
developing a companion to the 2004 ``National Protocol for Sexual 
Assault Medical Forensic Examinations'' that will be customized to the 
conditions of confinement. In addition, via a separate rulemaking 
process, the Department intends to propose removing the current ban on 
Victims of Crime Act funding for treatment and rehabilitation services 
for incarcerated victims of sexual abuse.

III. The Department's Prior Request for Comments

    On March 10, 2010 (75 FR 11077), the Department published an 
Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input 
on the Commission's proposed national standards. Approximately 650 
comments were received on the ANPRM, including comments from current or 
formerly incarcerated individuals, county sheriffs, State departments 
of correction, private citizens, professional organizations, social 
service providers, and advocacy organizations concerned with issues of 
prison rape, sexual violence, discrimination, and juvenile justice.
    The Department of Justice appreciates the interest and insight 
reflected in the many submissions and communications and has considered 
them carefully.
    In general, the commenters supported the broad goals of PREA and 
the overall intent of the Commission's recommendations. Some 
commenters, particularly those whose responsibilities involve the care 
and custody of inmates or juvenile residents, expressed concern that 
the Commission's recommended national standards implementing PREA would 
impose unduly burdensome costs on already tight State and local 
government budgets. Other commenters, particularly advocacy groups 
concerned with protecting the health and safety of inmates and juvenile 
residents, expressed concern that the Commission's standards did not go 
far enough, and, therefore, would not fully achieve PREA's goals. In 
preparing its proposed standards, the Department carefully considered 
each and every comment, keeping in mind both the goal of the statute 
and its mandate not to impose substantial additional costs compared to 
the costs presently expended by Federal, State, and local prison 
authorities. The following section includes additional discussion of 
comments relevant to particular standards.

IV. Overview of PREA National Standards

    Rape and sexual abuse are reprehensible, destructive, and illegal 
in any setting. Such acts are particularly damaging in the correctional 
environment, where the power dynamic is heavily skewed against victims 
and recourse is often limited. Until recently, however, this has been 
widely viewed as an inevitable aspect of imprisonment within the United 
States. This view is not only incorrect but incompatible with American 
values. Based on the Department's analysis of data compiled by BJS, 
approximately 200,000 adult prisoners and jail inmates suffered some 
form of sexual abuse while incarcerated during 2008. See BJS, Sexual 
Victimization in Prisons and Jails Reported by Inmates, 2008-09 (Aug. 
2010).\1\ This suggests 4.4% of the prison population and 3.1% of the 
jail population within the United States suffered sexual abuse during 
that year.\2\ In some prisons, nearly 9% of the population reported 
abuse within that time; in some jails the corresponding rate approached 
8%.\3\
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    \1\ This total includes the cross-sectional number covered in 
BJS surveys plus the number of estimated victims released in the 
twelve months prior to the survey. For methodology, see Initial 
Regulatory Impact Analysis (IRIA) at 9, available at https://www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
    \2\ See id. at 6.
    \3\ See id. at 8.
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    In juvenile facilities, the numbers are similarly troubling. At 
least 17,100 adjudicated or committed youth (amounting to some 12% of 
the total population in juvenile detention facilities) reported having 
suffered sexual abuse within 12 months of arriving at their facility, 
with rates as high as 36% in specific facilities. See BJS, Sexual 
Victimization in Juvenile Facilities Reported by Youth, 2008-09 (Jan. 
2010), at 1, 4.\4\ These numbers

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indicate that improvements can and must be made.
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    \4\ This total includes the cross-sectional number covered in 
BJS surveys plus the number of estimated victims released in the 
twelve months prior to the survey. It includes adjudicated/committed 
youth only. For methodology, see IRIA at 9.
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    Neither the Commission nor the Department began its work on a blank 
slate. Many correctional administrators have developed and implemented 
policies and practices to more effectively prevent and respond to 
prison rape. The Department applauds these efforts, and views them as 
an excellent first step. However, a national effort is needed to 
accomplish PREA's goals. Protection from sexual abuse should not depend 
on where an individual is incarcerated: It must be universal.
    The Commission recommended standards to the Department after 
several years of investigating the prevalence and nature of sexual 
abuse in incarceration settings and exploring correctional best 
practices in addressing it. The Department has built on the 
Commission's work and has adopted the overall structure of its 
standards as well as a significant majority of its specific 
recommendations. The Department's proposed rule echoes the Commission's 
recommendations in devising four sets of standards tailored to specific 
types of confinement facilities. Each set consists of the same eleven 
categories used by the Commission: Prevention planning, responsive 
planning, training and education, screening for risk of sexual 
victimization and abusiveness, reporting, official response following 
an inmate report, investigations, discipline, medical and mental care, 
data collection and review, and audits.
    The scope and content of the Department's standards do differ 
substantially from the Commission's proposals in a variety of areas. 
After careful consideration, the Department has made revisions to each 
of the Commission's recommended standards. At all times, the Department 
has weighed the logistical and financial feasibility of each standard 
against its benefits. The Department has found invaluable the comments 
received on the ANPRM, and expects that comments in response to this 
proposed rule will provide further insights.
    Definitions. Sections 115.5 and 115.6 provide definitions for key 
terms. The Department has largely relied on the Commission's 
definitions in the Glossary sections that accompanied the Commission's 
four sets of standards, but has made a variety of adjustments and has 
eliminated definitions for various terms that either do not appear in 
the Department's proposed standards or whose meaning is sufficiently 
clear so as not to need defining. In addition, the Department has 
included definitions in some of the standards themselves. Below is an 
explanation for key definitions modified or added by the Department:
    Community confinement facility. The Commission recommended a set of 
standards for community corrections, which it defined as follows: 
``Supervision of individuals, whether adults or juveniles, in a 
community setting as a condition of incarceration, pretrial release, 
probation, parole, or post-release supervision. These settings would 
include day and evening reporting centers.'' The Department believes 
that to the extent this definition includes supervision of individuals 
in a non-residential setting, it exceeds the scope of PREA's 
definitions of jail and prison, which include only ``confinement 
facilit[ies].'' 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule 
does not reference community corrections, but instead refers to 
``community confinement facilities.'' The proposed rule defines this 
term nearly identically to the definition provided in regulations 
promulgated by the Department to govern the Federal Bureau of Prisons. 
See 28 CFR 570.20(a). The term includes a range of facilities in which 
offenders or defendants reside as part of a term of imprisonment or as 
a condition of pre-trial release or post-release supervision, while 
pursuing employment, education, or other facility-approved programs 
during non-residential hours. A similar definition appears in Federal 
Sentencing Guideline 5F1.1 and, incorporated by reference, in 18 U.S.C. 
3621(g)(2).
    Employee, contractor, volunteer, and staff. The proposed rule 
clarifies these terms to conform more closely to their traditional 
definitions--e.g., employees are only those persons who work directly 
for the agency or facility. The term ``staff'' is used interchangeably 
with ``employees.''
    Inmate, detainee, and resident. The proposed standards use these 
three terms to refer to persons confined in the four types of covered 
facilities. The proposed standards for prisons and jails refer to 
persons incarcerated or detained therein as ``inmates.'' For 
simplicity, the proposed standards for lockups refer to all persons 
detained therein as ``detainees,'' including persons who have already 
been adjudicated. The proposed standards for juvenile facilities and 
for community confinement facilities refer to all persons housed 
therein as ``residents.''
    Jail and prison. Although the Commission did not define these 
terms, the Department believes that definitions are necessary, 
especially because the Department's proposed standards modify the 
Commission's recommended standards in certain respects to distinguish 
requirements applicable to jails from requirements applicable to 
prisons. The definitions provided in the proposed rule generally track 
the prevailing definitions of jails and prisons, based upon the primary 
use of each facility. If a majority of a facility's inmates are 
awaiting adjudication of criminal charges, serving a sentence of one 
year or less, or awaiting post-adjudication transfer to a different 
facility, then the facility is categorized as a jail, regardless of how 
the facility may label itself. As discussed in greater depth below, 
these terms do not encompass facilities that are primarily used for the 
civil detention of aliens pending removal from the United States.
    Question 1: The Department solicits comments regarding the 
application of this definition to those States that operate ``unified 
systems''--i.e., States with direct authority over all adult 
correctional facilities, as opposed to the more common practice of 
jails being operated by counties, cities, or other municipalities. 
States that operate unified systems may be less likely to adhere to the 
traditional distinctions between prisons and jails, and may operate 
facilities that are essentially a mixture of the two. Do the respective 
definitions of jail and prison, and the manner in which the terms are 
used in the proposed standards, adequately cover facilities in States 
with unified systems? If not, how should the definitions or standards 
be modified?
    Juvenile and juvenile facility. The proposed rule defines 
``juvenile'' as a person under the age of 18, unless defined otherwise 
under State law, and defines ``juvenile facility'' as a facility 
primarily used for the confinement of juveniles. Both definitions are 
new; the Commission did not define these terms.
    Lockup. With small clarifying modifications, the proposed rule 
adopts the Commission's definition of lockup, which includes temporary 
holding facilities under the control of a law enforcement, court, or 
custodial officer.
    Sexual abuse and related terms. In its ANPRM, the Department 
queried whether the standards should refer to ``rape'' or to ``sexual 
abuse.'' Most commenters suggested that the Department refer to 
``sexual abuse.'' All advocacy groups that responded to this question 
recommended using ``sexual abuse,'' and correctional agencies were 
split on the question. Proponents of the term sexual abuse noted that 
it captures a broader range of sexual victimization than rape, and 
noted that PREA defines rape expansively, see 42 U.S.C. 15609(9)-(12), 
to include a range of actions that more closely resembles the

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Commission's proposed definition of sexual abuse rather than the 
traditional definition of rape. For example, PREA includes ``sexual 
fondling'' in its definition of rape, see 42 U.S.C. 15609(9), (11), 
even though that term is typically associated with sexual abuse rather 
than with rape. Proponents of the term rape argued that referring to 
sexual abuse more accurately captures the intent of the statute and the 
scope of behavior that the regulations should address.
    The Department's proposed standards use the term sexual abuse, 
which the Department believes is a more accurate term to describe the 
behaviors that Congress aimed to eliminate. However, the proposed 
definition of sexual abuse removes sexual harassment from its scope. 
Several correctional agencies commented that including sexual 
harassment within the scope of sexual abuse would greatly expand the 
obligations of correctional agencies and would require responsive 
actions not commensurate to the harm caused by sexual harassment. The 
Department agrees, but has rejected the recommendation of some 
commenters that sexual harassment be removed entirely from the scope of 
the standards. Although PREA does not reference sexual harassment, it 
authorizes the Commission, and by extension the Attorney General, to 
propose standards relating to ``such other matters as may reasonably be 
related to the detection, prevention, reduction, and punishment of 
prison rape.'' 42 U.S.C. 15606(e)(2)(M). The Department believes that 
it is appropriate that certain standards reference sexual harassment in 
order to combat what may be a precursor to sexual abuse.
    With the exception of the omission of sexual harassment, the 
Department's proposed definition of sexual abuse substantively 
resembles the Commission's recommended definition. The format and 
wording, however, have been revised to conform more closely to the 
definitions used by BJS in its Survey of Sexual Violence, as several 
commenters suggested. The Department hopes that harmonizing these 
definitions, to the extent possible, will provide greater clarity to 
correctional agencies.
    The proposed definition of sexual abuse excludes consensual 
activity between inmates, detainees, or residents, but does not exclude 
consensual activity with staff. The Department, like the Commission, 
believes that the power imbalance in correctional facilities is such 
that it is impossible to know if an incarcerated person truly 
``consented'' to sexual activity with staff.
    Prevention Planning: Sections 115.11, 115.111, 115.211, 115.311, 
115.12, 115.112, 115.212, 115.312, 115.13, 115.113, 115.213, 115.313, 
115.14, 115.114, 115.214, 115.314, 115.15, 115.115, 115.215, 115.315, 
115.16, 115.116, 115.216, 115.316, 115.17, 115.117, 115.217, and 
115.317 (compare to the Commission's PP standards). Like the 
Commission, the Department believes it is important to establish what 
actions facilities are expected to take to prevent sexual abuse.
    Sections 115.11, 115.111, 115.211, and 115.311 (compare to the 
Commission's PP-1 standard), require that agencies establish a written 
zero-tolerance policy toward sexual abuse and harassment. The proposed 
standard clarifies that, in addition to mandating zero tolerance, the 
policy must outline the agency's approach to preventing, detecting, and 
responding to such conduct.
    This standard also mandates that agencies employ or designate an 
upper-level, agency-wide PREA coordinator to oversee efforts to comply 
with PREA standards. In all agencies that operate facilities whose 
total rated capacity exceeds 1,000 inmates,\5\ this agency-wide PREA 
coordinator must be a full-time position. Other agencies may designate 
this role as a part-time position or may assign its functions to an 
existing full-time or part-time employee.
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    \5\ As noted above, the proposed standards refer to ``inmates,'' 
``detainees,'' and ``residents,'' depending upon the type of 
confinement facility. For simplicity, the explanation of the 
standards refers to all persons confined within any type of facility 
as ``inmates'' except where specifically discussing lockups, 
juvenile facilities, or community confinement facilities.
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    Several commenters criticized that the Commission's proposed 
requirement that the PREA coordinator report directly to the agency 
head. These commenters expressed concern about setting the position at 
an unreasonably high level within the agency, which could require it to 
become a political appointment and thus subject to frequent turnover. 
The Department's proposed standard requires that the position be 
``upper-level'' but does not require that the coordinator report 
directly to the agency head. In addition, some correctional agencies 
expressed concern that mandating a full-time coordinator for jails that 
house only 500 inmates, as the Commission proposed, would impose too 
great a burden. The Department's proposed standard instead mandates a 
full-time coordinator only for agencies that operate facilities whose 
total rated capacity exceeds 1,000 inmates. In addition, agencies whose 
total capacity exceeds 1,000 inmates must also designate an existing 
full-time or part-time employee at each facility to serve as that 
facility's PREA coordinator.
    The intent is to tailor this requirement to the varying needs and 
capacities of agencies and facilities: Requiring large agencies to 
dedicate an employee to coordinate PREA efforts full-time, while 
allowing smaller agencies, and individual facilities within large 
agencies, to assign such duties as part of an employee's broader 
portfolio, thus ensuring a ``point person'' who is responsible for PREA 
efforts.
    Question 2: Should the Department modify the full-time coordinator 
requirement to allow additional flexibility, such as by requiring only 
that PREA be the coordinator's primary responsibility, or by allowing 
the coordinator also to work on other related issues, such as inmate 
safety more generally?
    Sections 115.12, 115.112, 115.212, and 115.312 (compare to the 
Commission's PP-2 standard), require that agencies that contract with 
private entities for the confinement of inmates include the entity's 
obligation to comply with the PREA standards in new contracts or 
contract renewals. Several agency commenters expressed concern that the 
Commission's proposed requirement that an agency ``monitor the entity's 
compliance with these standards as part of its monitoring of the 
entity's performance'' would impose too great a financial burden. The 
Department's proposed standard modifies slightly the Commission's 
proposal by requiring only that new contracts or renewals ``shall 
provide for agency contract monitoring to ensure that the contractor is 
complying with PREA standards.'' The revision is intended to indicate 
that the agency is not required to conduct audits of its contract 
facilities but rather must include PREA as part of its routine 
monitoring of compliance with contractual obligations.
    Question 3: Should the final rule provide greater guidance as to 
how agencies should conduct such monitoring? If so, what guidance 
should be provided?
    Sections 115.13, 115.113, 115.213, and 115.313 (compare to the 
Commission's PP-3 and PP-7 standards) govern the supervision and 
monitoring of inmates. The Department has combined the Commission's 
proposed PP-3 and PP-7 standards into one standard, in recognition that 
direct staff supervision and video monitoring

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are two methods of achieving one goal: Reducing the opportunity for 
abuse to occur unseen. The Department recognizes that different 
agencies rely on staffing and technology to varying degrees depending 
upon their specific characteristics. Accordingly, the Department 
believes that these issues are best considered together.
    The Department is mindful that staffing and video-monitoring 
systems are both expensive. Staff salaries and benefits are typically 
the largest item in a correctional agency's budget, see, e.g., National 
Institute of Corrections, Staffing Analysis: Workbook for Jails (2d 
ed.) at 2, and economies of scale are difficult to obtain: Increasing 
staffing by 25% is likely to increase staff costs by 25%. Likewise, 
video-monitoring systems may be beyond the financial reach of some 
correctional agencies, although the costs of such systems may diminish 
in future years as technology advances.
    Various agency commenters criticized the first sentence of the 
Commission's PP-3 standard: ``Security staff provides the inmate 
supervision necessary to protect inmates from sexual abuse.'' 
Commenters suggested that the Commission's recommended standard did not 
provide appropriate guidance as to what level of supervision would be 
``necessary to protect inmates from sexual abuse,'' and that it did not 
indicate whether compliance would be measured ex ante, by reviewing 
staffing levels alone, or ex post, by determining that instances of 
sexual abuse could have been prevented by additional staffing.
    The Department recognizes the importance of staffing levels in 
combating sexual abuse, and believes that the correctional community 
shares this view. See, e.g., American Correctional Association Public 
Correctional Policy on Offender on Offender Sexual Assault (Jan. 12, 
2005) (recommending that agencies ``[m]aintain adequate and appropriate 
levels of staff to protect inmates against sexual assault''). Although 
proper supervision and monitoring cannot eliminate sexual abuse, it can 
play a key role in reducing opportunities for it to occur. In addition, 
inadequate staffing can be a contributing factor in a judicial 
determination that conditions of confinement violate the Constitution. 
See, e.g., Krein v. Norris, 309 F.3d 487, 489-92 (8th Cir. 2002); Ramos 
v. Lamm, 639 F.2d 559, 573-74 (10th Cir. 1980). In several of the 
Department's investigations of correctional facilities under the Civil 
Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq., for 
engaging in a pattern or practice of violating inmates' Federal rights, 
the terms of consent decrees and settlements have included specific 
remedial measures aimed at improving the adequacy of staffing.
    At the same time, however, the Department recognizes that 
determining adequate staffing levels is a complicated, facility-
specific enterprise. The appropriate number of staff depends upon a 
variety of factors, including (but not necessarily limited to) the 
physical layout of a facility, the security level and gender of the 
inmates, whether the facility houses adults or juveniles, the length of 
time inmates reside in the facility, the amount of programming that the 
facility offers, and the facility's population density (i.e., comparing 
the number of inmates to the number of beds or square feet). In 
addition, the facility's reliance on video monitoring and other 
technology may reduce staffing requirements, as long as the facility 
employs sufficient staff to monitor the video feeds or other 
technologies such as call buttons or sensors. The viability of 
technology may depend upon, among other factors, the characteristics of 
the incarcerated population. Administrators of juvenile facilities, for 
example, are typically more reluctant to rely heavily on video 
monitoring given the staff-intensive needs of their residents.
    Due to the complex interaction of these factors, the Department 
does not believe that it is possible to craft a formula that would set 
appropriate staffing levels for all populations--although the 
Department is aware that some States do set such levels for juvenile 
facilities. Nor is it likely that an auditor would be able to determine 
the appropriate staffing level in the limited amount of time available 
to conduct an audit. Relying on reported incidents of sexual abuse to 
determine appropriate staffing levels is also an imperfect method given 
the uncertainty as to whether an incident will be reported. Facilities 
where inmates feel comfortable reporting abuse, and where 
investigations are conducted effectively, may be more likely than other 
facilities to experience substantiated allegations of sexual abuse, 
even if the facility is no less safe than its counterparts. For this 
reason, the Department has opted not to adopt general across-the-board 
performance-based standards, as proposed by some commenters.
    Accordingly, the Department is of the view that any standard that 
governs supervision and monitoring must protect inmates while providing 
sufficient clarity as to its requirements, recognizing that the 
adequacy of supervision and monitoring depends on several factors that 
interact differently for each facility, and accounting for the costs 
involved in employing additional staff and in purchasing and deploying 
additional technology.
    The Department believes that, at a minimum, such a standard must 
impose at least three requirements. First, an agency must make an 
assessment of adequate staffing levels, taking into account its use, if 
any, of video monitoring or other technology. The fact that multiple 
factors bear on the adequacy of staffing and monitoring is no barrier 
to requiring an agency to conduct such an assessment for each of its 
facilities. Second, an agency must devise a plan for how to best 
protect inmates from sexual abuse should staffing levels fall below an 
adequate level. Third, an agency must reassess at least annually such 
adequate staffing levels, as well as the staffing levels that actually 
prevailed during the previous year, and must also reassess its use of 
video monitoring systems and other technologies.
    The Department assumes that most agencies already engage in similar 
inquiries; the purpose of mandating such inquiries within these 
standards is to institutionalize the practice of assessing staffing and 
monitoring in the context of considering how staffing and monitoring 
contribute to efforts to combat sexual abuse.
    The Department is interested in receiving comments on whether and 
to what extent this standard should include additional or alternative 
requirements, and poses various questions below designed to elicit such 
comments. The Department has already received comments from the former 
Commissioners themselves regarding possible options. Following a 
meeting between the Department and several of the former Commissioners 
on August 4, 2010, that included discussion of the Commission's PP-3 
and PP-7 standards, the former Commissioners sent the Department a 
memorandum dated September 28, 2010, that discussed possible revisions 
to this standard. The former Commissioners noted the possibility of 
replacing the first sentence of the PP-3 standard with the following: 
``Agency heads must establish in writing the staffing requirements for 
each shift at each facility to keep inmates safe from sexual abuse and 
must designate the priority posts at each facility that must be filled 
on each shift regardless of staff shortages or absences.'' In addition, 
the Commissioners noted that the PP-7 standard could be replaced with 
the following: ``The agency uses video monitoring systems, if 
available, or other appropriate technology to

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supplement its sexual abuse prevention, detection, and response 
efforts. Because video monitoring and other appropriate technology can 
contribute to prevention [and] detection of sexual abuse, the agency 
assesses at least annually the feasibility of acquiring new or 
additional technology. Compliance is measured by ensuring that the 
facility has developed a plan for securing such technology as funds 
become available.''
    Question 4: Should the standard require that facilities actually 
provide a certain level of staffing, whether determined qualitatively, 
such as by reference to ``adequacy,'' or quantitatively, by setting 
forth more concrete requirements? If so, how?
    Question 5: If a level such as ``adequacy'' were mandated, how 
would compliance be measured?
    Question 6: Various States have regulations that require 
correctional agencies to set or abide by minimum staffing requirements. 
To what extent, if any, should the standard take into account such 
State regulations?
    Question 7: Some States mandate specific staff-to-resident ratios 
for certain types of juvenile facilities. Should the standard mandate 
specific ratios for juvenile facilities?
    Question 8: If a level of staffing were mandated, should the 
standard allow agencies a longer time frame, such as a specified number 
of years, in order to reach that level? If so, what time frame would be 
appropriate?
    Question 9: Should the standard require the establishment of 
priority posts, and if so, how should such a requirement be structured 
and assessed?
    Question 10: To what extent can staffing deficiencies be addressed 
by redistributing existing staff assignments? Should the standard 
include additional language to encourage such redistribution?
    Question 11: If the Department does not mandate the provision of a 
certain level of staffing, are there other ways to supplement or 
replace the Department's proposed standard in order to foster 
appropriate staffing?
    Question 12: Should the Department mandate the use of technology to 
supplement sexual abuse prevention, detection, and response efforts?
    Question 13: Should the Department craft the standard so that 
compliance is measured by ensuring that the facility has developed a 
plan for securing technology as funds become available?
    Question 14: Are there other ways not mentioned above in which the 
Department can improve the proposed standard?
    The proposed standard also adds a requirement that prisons and 
jails with rated capacity in excess of 500 inmates develop a policy of 
requiring supervisors to conduct unannounced rounds. The Department 
believes that requiring such rounds is an appropriate measure to deter 
staff misconduct, in recognition of the great responsibility entrusted 
to correctional staff, who often perform their duties unaccompanied by 
colleagues. The proposed standard does not mandate how frequently such 
rounds must be conducted, in recognition that the frequency of 
unannounced rounds may be less important than the deterrent effect of 
knowing that such rounds may be conducted at any time. However, the 
Department believes that unannounced rounds should be conducted with 
reasonable frequency to ensure that such rounds have a sufficient 
deterrent effect, and solicits comments on this issue.
    Question 15: Should this standard mandate a minimum frequency for 
the conduct of such rounds, and if so, what should it be?
    Finally, the proposed standard omits language from the Commission's 
recommended PP-3 standard regarding post-incident reviews and taking 
corrective action. Because the language in those standards cross-
references two of the Commission's recommended standards for data 
collection and review (DC-1 and DC-3), the Department has included 
comparable language in the proposed standards that correspond to the 
Commission's DC-1 and DC-3 standards--i.e., Sec. Sec.  115.86, 115.186, 
115.286, and 115.386 (DC-1) and Sec. Sec.  115.88, 115.188, 115.288, 
and 115.388 (DC-3).
    Sections 115.14, 115.114, 115.214, and 115.314 (compare to the 
Commission's PP-4 standard) address the limits on cross-gender 
searches. The proposed standard diverges significantly from the 
Commission's recommendations in its PP-4 standard. The Commission 
proposed strict limits on cross-gender strip searches, visual body 
cavity searches, pat-down searches, and viewing of inmates nude or 
performing bodily functions. Specifically, the Commission would permit 
the first two only in case of emergency, and the latter two in 
emergencies or ``other extraordinary or unforeseen circumstances.'' The 
Commission recommended such restrictions in order to ``to protect the 
privacy and dignity of inmates and to reduce opportunities for staff-
on-inmate sexual abuse.'' Standards for the Prevention, Detection, 
Response, and Monitoring of Sexual Abuse in Adult Prisons and Jails 
(``Prison/Jail Standards''), available at https://www.ncjrs.gov/pdffiles1/226682.pdf, at 12.
    The Department received numerous comments on the Commission's 
proposed limits on cross-gender pat-down searches. A large number of 
agencies objected to the Commission's proposal on the ground that it 
would require agencies either to hire significant numbers of additional 
male staff or to lay off significant numbers of female staff, due to 
their overwhelmingly male inmate population and substantial percentage 
of female staff. In addition, many agencies expressed concern that the 
necessary adjustments to their workforce could violate Federal or State 
equal employment opportunities laws. Several advocacy groups, on the 
other hand, expressed support for the Commission's proposal.
    The Department recognizes that pat-down searches are critical to 
ensuring facility security and yet are often perceived as intrusive by 
inmates. Ideally, all pat-down searches would be conducted 
professionally and diligently by staff members of the same sex as the 
inmate. However, the Department is concerned about the high cost of 
imposing such a general requirement, and the concomitant effect on 
employment opportunities for women. The Department agrees with the 
Commission that ``cross-gender supervision, in general, can prove 
beneficial in certain confinement settings.'' Prison/Jail Standards at 
12. Although the Commission stated that it ``in no way intends for this 
standard to limit employment (or post assignment) opportunities for men 
or women,'' id., the Department is of the view that implementing a 
general prohibition on cross-gender pat-down searches cannot be 
achieved in many correctional systems without limiting such 
opportunities. In sum, the Department believes that the potential 
benefits of eliminating cross-gender pat-down searches do not justify 
the costs, financial and otherwise, of imposing such a rule across the 
board.
    The proposed standard would retain the Commission's recommendation 
as applied to juvenile facilities, which tend to conduct pat-down 
searches less frequently. Indeed, many juvenile facilities already ban 
cross-gender pat-down searches absent exigent circumstance. In 
addition, the Department proposes that adult prisons, jails, and 
community confinement facilities not allow cross-gender pat-down 
searches of inmates who have previously suffered cross-gender sexual 
abuse while incarcerated. The Department agrees with the comment of

[[Page 6254]]

the New York Department of Correctional Services, which has implemented 
such a rule in its facilities, that allowing such an exemption is a 
viable and proportionate approach to protecting those inmates most 
likely to suffer emotional harm during cross-gender pat-downs.
    The proposed standard also mandates that agencies train security 
staff in how to conduct cross-gender pat-down searches in a 
professional and respectful manner, and in the least intrusive manner 
possible consistent with security needs. Because any pat-down search 
carries the potential for abuse, the Department believes that training 
in the proper conduct of such searches is a cost-effective approach to 
combating problems that might arise in either a cross-gender or same-
gender pat-down search.
    Question 16: Should the final rule contain any additional measures 
regarding oversight and supervision to ensure that pat-down searches, 
whether cross-gender or same-gender, are conducted professionally?
    Agency commenters' concerns about banning cross-gender pat-down 
searches absent exigent circumstances did not extend to a similar rule 
for strip searches and visual body cavity searches. The Department's 
proposed standard incorporates that aspect of the Commission's standard 
PP-4 as drafted, with two modifications. First, the proposed standard 
exempts such cross-gender searches when conducted by medical 
practitioners: The Department believes that a medical practitioner, 
even of the opposite gender, is more likely to conduct such searches 
with appropriate sensitivity. Second, the standard would require 
facilities to document all such cross-gender searches, whether 
conducted under emergency circumstances or by medical staff under non-
emergency circumstances.
    The Department received fewer comments on the Commission's proposed 
ban on cross-gender viewing of inmates who are nude or performing 
bodily functions. Some agencies expressed concern about being able to 
retrofit older facilities, while others commented that the Commission's 
language could preclude officers from making unannounced rounds in 
units where toilets are located within cells. To accommodate the latter 
concern, the proposed standard modifies the Commission's recommendation 
by exempting cross-gender viewing when incidental to routine cell 
checks. The Department believes that concerns about retrofitting can be 
accommodated by constructing privacy panels, reassigning staff, or 
other appropriate measures in the limited circumstances where such 
retrofitting is not possible.
    Sections 115.14, 115.114, 115.214, and 115.314 also bar 
examinations of transgender inmates to determine gender status unless 
such status is unknown and the examination is conducted in private by a 
medical practitioner. The Department's proposed standard adopts the 
Commission's restrictions, to which no commenter objected. Some 
commenters would impose further restrictions and ban all examinations 
to determine gender status, but the Department believes that a complete 
ban could preclude examinations where necessary to ensure the safety 
and security of the inmate examined and of other inmates and staff.
    Sections 115.15, 115.115, 115.215, and 115.315 (compare to the 
Commission's PP-5 standard) govern the accommodation of inmates with 
disabilities and inmates with limited English proficiency (LEP). As the 
Commission noted, ``[t]he ability of all inmates to communicate 
effectively and directly with staff, without having to rely on inmate 
interpreters, is crucial for ensuring that they are able to report 
sexual abuse as discreetly as possible.'' Prison/Jail Standards at 13. 
The Department's proposed standard, like the PP-5 standard, requires 
that agencies develop methods to ensure that LEP inmates and inmates 
with disabilities (e.g., inmates who are deaf, hard of hearing, or 
blind and inmates with low vision, intellectual, psychiatric, speech, 
and mobility disabilities) are able to report sexual abuse and sexual 
harassment to staff directly, and that agencies make accommodations to 
convey sexual abuse policies orally to inmates who have intellectual 
disabilities or limited reading skills or who are blind or have low 
vision. Unlike the Commission's proposal, the proposed standard allows 
for the use of inmate interpreters in exigent circumstances, 
recognizing that in certain circumstances such use may be unavoidable. 
Some commenters would require facilities to ensure that inmates with 
disabilities and LEP inmates be able to communicate with staff 
throughout the entire investigation and response process. The 
Department solicits feedback on this question.
    The Department also notes that agencies receiving Federal financial 
assistance are required under Federal civil rights laws to meet 
obligations to inmates with disabilities or who are LEP. The Department 
encourages all agencies to refer to the relevant statutes, regulations, 
and guidance when determining the extent of their obligations.
    The Americans with Disabilities Act (ADA) requires State and local 
governments to make their services, programs, and activities, 
accessible to individuals with all types of disabilities. See 42 U.S.C. 
12132; 28 CFR 35.130, 35.149-35.151. The ADA also requires State and 
local governments to ensure that their communications with individuals 
with disabilities affecting communication (blindness, low vision, 
deafness, or other speech or hearing disability) are as effective as 
their communications with individuals without disabilities. See 28 CFR 
35.160-35.164. In addition, the ADA requires each State and local 
government to make reasonable modifications to its policies, practices, 
and procedures when necessary to avoid discrimination against 
individuals with disabilities, unless it can demonstrate that making 
the modifications would fundamentally alter the nature of the relevant 
service, program, or activity. See 28 CFR 35.130(b)(7). These 
nondiscrimination obligations apply to all correctional and detention 
facilities operated by or on behalf of State or local governments. See 
Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).
    Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d et seq., and implementing regulations, all State and local 
agencies that receive Federal financial assistance must provide LEP 
persons with meaningful access to all programs and activities. See 
Enforcement of Title VI of the Civil Rights Act of 1964--National 
Origin Discrimination Against Persons with Limited English Proficiency, 
65 FR 50123. Pursuant to Executive Order 13166 of August 11, 2000, each 
agency providing Federal financial assistance is obligated to draft 
Title VI guidance regarding LEP persons that is specifically tailored 
to the agency's recipients of Federal financial assistance. The 
Department's guidance for its recipients includes a discussion of LEP 
issues in correctional and detention settings. See Guidance to Federal 
Financial Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons, 67 FR 41455.
    Question 17: Should the final rule include a requirement that 
inmates with disabilities and LEP inmates be able to communicate with 
staff throughout the entire investigation and response process? If such 
a requirement is included, how should agencies ensure communication 
throughout the process?

[[Page 6255]]

    Sections 115.16, 115.116, 115.216, and 115.316 (compare to the 
Commission's PP-6 standard) govern hiring and promotion decisions. Like 
the Commission's proposal, the proposed standard would restrict 
agencies' ability to hire employees who previously engaged in sexual 
abuse. Several commenters expressed concern about the burden that would 
be imposed by requiring background checks on any employee being 
considered for promotion. The proposed standard would not mandate such 
checks but instead would require agencies to conduct criminal 
background checks of current employees at least every five years (as 
the Federal Bureau of Prisons currently does) or have in place a system 
for otherwise capturing such information for current employees.
    Sections 115.17, 115.117, 115.217, and 115.317 constitute a new 
standard requiring agencies to take into account how best to combat 
sexual abuse when designing or expanding facilities and when installing 
or updating video monitoring system or other technology. The Department 
believes that it is appropriate to require agencies to consider the 
impact of their physical and technological upgrades. Indeed, the 
American Correctional Association has recommended that, as a means of 
deterring sexual abuse, agencies should ``[p]romote effective facility 
design that enables direct lines of sight within housing units.'' 
American Correctional Association Public Correctional Policy on 
Offender on Offender Sexual Assault (Jan. 12, 2005). The sentence in 
this standard regarding technology is adopted from a suggestion made in 
a comment by the New York Department of Correctional Services.
    Response Planning: Sections 115.21, 115.121, 115.221, 115.321, 
115.22, 115.222, 115.322, 115.23, 115.123, 115.223, and 115.323 
(compare to the Commission's RP standards). Like the Commission, the 
Department believes it is important to establish standards that address 
how facilities are expected to respond once an incident of sexual abuse 
occurs.
    Sections 115.21, 115.121, 115.221, and 115.321 (compare to the 
Commission's RP-1 standard) set forth an evidence protocol to ensure 
all usable physical evidence is preserved for administrative or 
criminal proceedings. The standard makes clear that prompt exams are 
needed both to identify medical and mental health needs and to minimize 
the loss of evidence. In balancing these two interests, facilities 
should prioritize treating a victim's acute medical and mental health 
needs before collecting evidence. Like the Commission, the Department 
believes that its Office on Violence Against Women's National Protocol 
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents, a 
revised version of which will be published later this year, provides 
the best set of guidelines for conducting these exams. The proposed 
standard expands the Commission's recommendation by requiring access to 
exams not only in cases of penetration but whenever evidentiarily or 
medically appropriate. For example, if an inmate alleges that she was 
choked in the course of a sexual assault that did not result in 
penetration, a forensic exam might provide evidence to support or 
refute her contention.
    This standard takes into account the fact that some agencies are 
not responsible for investigating alleged sexual abuse within their 
facilities and that those agencies may not be able to dictate the 
conduct of investigations conducted by outside entities. In such 
situations, the proposed standard requires the agency to inform the 
investigating entity about the standard's requirements with the hope 
that the investigating entity will look to the standard as a best-
practices guideline. In addition, the standard applies to any outside 
State entity or Department of Justice component that investigates such 
allegations.
    In all settings except lockups, the proposed standard requires that 
the agency offer all sexual abuse victims access to a person either 
inside or outside the facility who can provide support to the victim. 
Specifically, the proposed standard requires that the agency make 
available to the victim either a victim advocate from a community-based 
organization that provides services to sexual abuse victims or a 
``qualified staff member,'' defined as a facility employee who has 
received education concerning sexual assault and forensic examination 
issues in general. A victim advocate or qualified staff member must be 
made available to accompany and support the victim through the forensic 
medical exam process and the investigatory process, and to provide 
emotional support, crisis intervention, information and referrals, as 
needed. This requirement is intended to ensure that victims understand 
the forensic exam and investigative processes and receive support and 
assistance at an emotionally difficult time. Several agency commenters 
expressed concern about the burden imposed by this requirement. The 
Department notes that it has revised the Commission's standard in order 
to clarify that an existing employee with appropriate education can 
fulfill this role, thus reducing the burden on the facility while 
ensuring support for the victim.
    Lockups are excluded from this requirement for three reasons. 
First, because lockups are leanly staffed, complying with this 
requirement could well require the hiring of an additional staff 
person. Second, there is little evidence of a significant amount of 
sexual abuse in lockups that would warrant such expenditure. Third, 
lockup inmates are highly transient, and thus in some cases, victims of 
sexual abuse already will have been transferred to a jail before the 
forensic exam is conducted.
    Question 18: Do the standards adequately provide support for 
victims of sexual abuse in lockups upon transfer to other facilities, 
and if not, how should the standards be modified?
    Sections 115.22, 115.222, and 115.322 (compare to the Commission's 
RP-2 standard) govern the agreements that facilities enter into with 
public service and community providers. The goal of the proposed 
standard is to allow inmates the opportunity to report instances of 
sexual abuse and sexual harassment to an entity outside of the agency. 
The Department's proposed standard exempts agencies that allow 
reporting to quasi-independent internal offices, such as inspectors 
general. In addition, the proposed standard requires that agencies 
maintain or attempt to enter into agreements with community service 
providers who can provide inmates confidential emotional support 
services related to sexual abuse. Some commenters argued that this 
standard should expressly mandate specific assistance for LEP inmates. 
The Department encourages agencies to make efforts to allow such 
inmates to partake in the services offered under this standard and 
solicits comments on whether such a mandate should be included.
    Question 19: Should this standard expressly mandate that agencies 
attempt to enter into memoranda of understanding that provide specific 
assistance for LEP inmates?
    The proposed standards do not include the Commission's 
recommendations that agencies attempt to enter into memoranda of 
understanding with outside investigative agencies (the Commission's RP-
3 standard) and with prosecutorial agencies (the Commission's RP-4 
standard). A number of agency commenters expressed concern that these 
requirements would impose significant burdens, especially in State 
systems

[[Page 6256]]

where investigations and prosecutions are conducted by numerous 
different agencies at the county or municipal level. The Department 
recognizes that such memoranda of understanding have proven to be 
valuable for certain agencies, and encourages agencies to explore the 
viability of attempting to enter into such agreements. However, due to 
burden concerns, the Department does not believe that agencies should 
be required to make such efforts. Instead, Sec. Sec.  115.23, 115.123, 
115.223, and 115.323 mandate that each agency must have in place 
policies to ensure that allegations of sexual abuse or sexual 
harassment are investigated by an agency with the legal authority to 
conduct criminal investigations. The policy must be published on the 
agency's Web site, and, if a separate entity is responsible for 
investigating criminal investigations, the Web site must delineate the 
responsibilities of the agency and the investigating entity. The 
Department's proposed standard also requires that that any State entity 
or Department of Justice component that conducts such investigations 
must have policies in place governing the conduct of such 
investigations.
    Training and Education: Sections 115.31, 115.131, 115.231, 115.331, 
115.32, 115.132, 115.232, 115.332, 115.33, 115.233, 115.333, 115.34, 
115.134, 115.234, 115.334, 115.35, 115.235, and 115.335 (compare to the 
Commission's TR standards). Like the Commission, the Department 
believes that training for all individuals who have contact with 
inmates is a key component in combating sexual abuse. Training will 
create awareness of the issue of sexual abuse in facilities, clarify 
staff responsibilities, ensure that reporting mechanisms are known to 
staff and populations in custody, and provide specialized information 
for staff with key roles in responding to sexual abuse. These standards 
are substantively similar to those offered by the Commission. In 
addition, each standard in this category requires documentation that 
the required training was provided and, for staff training, that the 
training was understood. In order to facilitate compliance, the 
Department has revised the Commission's recommendations to allow 
electronic documentation.
    Sections 115.31, 115.131, 115.231, and 115.331 (compare to the 
Commission's TR-1 standard) require that all employees who have contact 
with inmates receive training concerning sexual abuse in facilities, 
with refresher training to be provided on an annual basis thereafter. 
The proposed standard includes all training topics proposed by the 
Commission, plus training in how to avoid inappropriate relationships 
with inmates. In addition, the Department has added a requirement that 
the training be tailored to the gender of the inmates at the employee's 
facility, that training cover effective and professional communication 
with lesbian, gay, bisexual, transgender, and intersex residents, and 
that training in juvenile facilities be tailored to the juvenile 
setting.
    Due to the limited detention operations of lockups, Sec.  115.131, 
consistent with the Commission's corresponding TR-1 standard, does not 
specify training requirements beyond requiring that the agency train 
all employees